A landmark decision to refuse a widow’s request to contest the Will and Trust of her late husband’s estate because the request was made after the six-month deadline has been overturned by the Court of Appeal.
The original judgement prevented Mrs Cowan from using an out of date application which sought to offer further provisions after claiming her husband’s trust failed to provide certainty and security.
Those who wish to contest a Will have just six months to make claims against an estate if they believe they are entitled to additional provision, once probate is granted. However, this issue has been subjective with some judges approving an Inheritance Act claim even though it has passed the deadline.
However, Judge Justice Mostyn’s assessment during the High Court’s ruling of the Cowan v Foreman & Ors case was disapproved on the grounds that the widow in question’s claim was over 17 months too late and there was a lack of exceptional factors to overlook the six-month time limit.
The widow and defendants had originally entered into a standstill agreement, allowing all parties to discuss the issues and concerns without enforcing the six-month deadline.
Mostyn was highly critical of the ‘standstill agreement’ between two negotiating parties, claiming standstill agreements should never be used to extend time in cases, but the parties should file a claim in Court within the specified six months deadline – even if they end up putting court proceedings on hold in order to negotiate terms.
However, the Court of Appeal’s overruling by Lady Justice Asplin has accused Judge Mostyn’s decision to be ‘plainly wrong.’ The appeal suggested that section 4 of the Inheritance Act 1975 should look to decide whether a claim being made out of time was justified. This means the issue of ‘good reason or cause’ for there to be a delay was irrelevant. What should be key to the case was the legitimacy of the claim being made.
Additionally, the Court of Appeal itself was critical of the ‘stale claim’ argument, deeming it irrelevant under section 20 of the Inheritance Act 1975 concerning trustees who have made distributions after the expiry of the six-month period.
The Court maintained that Judge Mostyn may have failed to consider the real issue of whether Mrs Cowan’s financial provision was adequate.
The Court of Appeal considered the inheritance of her husband’s personal chattels to be nominal and insufficient given the size of the estate and length of the relationship.
As the terms of the trust diminished Mrs Cowan’s security and interest in the marital home of 20 years, she had a right to contest the provision, despite the late claim.
This decision falls in line with other cases this year – namely Bhusate –v- Patel [2019] EWHC 470 (Ch) case. The Court allowed a claim to be brought under the Inheritance (Provision for Family and Dependants) Act 1975 approximately 25 years and nine months after the deadline.
Cathryn Culverhouse, Solicitor at DMH Stallard, said:
“Lady Justice Asplin’s decision gives welcome clarity and a sensible approach to claims under the 1975 Act where the deadline for bringing claims is relatively short.
“Her endorsement of “standstill agreements” is likely to be applauded by Claimants where they are often forced into the costs of issuing court proceedings within six months of the date of grant of probate, just to protect their position.”
As a Will writer, what is your opinion of these cases? Do you think it could lead to an increase of claims against estates?
